Petition for Writ of Certiorari — James W. Richards, IV, Petitioner v. Barbara M. Barrett, Secretary of the Air Force, et al.

Supreme Court briefJul 8, 2019

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No. ______

IN THE

Supreme Court of the United States

__________

JAMES W. RICHARDS, IV,

Petitioner,

MATTHEW P. DONOVAN,

ACTING SECRETARY OF THE AIR FORCE,

COLONEL BRIAN S. GREENROAD,

COMMANDER, AIR FORCE SECURITY FORCES CENTER,

COLONEL CAROLINE K. HORTON,

COMMANDANT, U.S. DISCIPLINARY BARRACKS,

Respondents.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

MARK C. BRUEGGER

Counsel of Record

Air Force Legal Operations Agency

1500 West Perimeter Road, Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4782

mark.c.bruegger.civ@mail.mil

Counsel for Petitioner

QUESTION PRESENTED

Petitioner submitted a Petition for Extraordinary

Relief in the Nature of a Writ of Mandamus to the Air

Force Court of Criminal Appeals (AFCCA), seeking

redress from the Government’s ex post facto

application of good conduct time confinement credits.

The AFCCA determined it had jurisdiction to review

the petition under the All Writs Act, 28 U.S.C.

§ 1651(a). In doing so, the AFCCA declined the

Government’s request to dismiss due to the Secretary

of the Air Force’s action to finalize the case, reasoning

that the petition had been docketed and fully briefed

prior to such finalization. The AFCCA subsequently

denied the petition on its merits. Petitioner timely

appealed the AFCCA’s decision to the Court of

Appeals for the Armed Forces (CAAF), which

possessed jurisdiction over all cases reviewed by the

AFCCA. The CAAF then dismissed the writ-appeal

for lack of jurisdiction.

The Question Presented is:

Can the Executive Branch divest an Article I

military court of appeals of jurisdiction over

an extraordinary writ brought under the All

Writs Act, 28 U.S.C. § 1651(a), once

jurisdiction has vested under the Uniform

Code of Military Justice?

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

TABLE OF AUTHORITIES ................................................ ii

PETITION FOR A WRIT OF CERTIORARI .......................... 1

OPINIONS BELOW ......................................................... 1

JURISDICTION ............................................................... 1

STATUTORY PROVISIONS INVOLVED .............................. 2

STATEMENT OF THE CASE ............................................. 7

A. Legal Background ....................................... 7

B. Procedural History – Direct Appeal......... 17

C. Procedural History – Writ ........................ 17

REASONS FOR GRANTING THE PETITION ..................... 20

A. The CAAF’s decision conflicts with

this Court’s controlling precedent .......... 21

B. The CAAF’s decision conflicts with

the

UCMJ

and

contravenes

Congressional intent to have military

courts serve as the primary source for

servicemembers seeking collateral

relief ........................................................ 26

C. The CAAF’s decision will result in

servicemembers

seeking

extraordinary relief through the

civilian court system.

This will

increase

the

likelihood

servicemembers being disparately

treated, and will supplant the

military courts as arbiters over

military justice .......................................... 28

CONCLUSION .............................................................. 32

APPENDIX ........................................................ 1a

United States Court of Appeals

for the Armed Forces, Order

(Mar. 1, 2019) ................................................. 4a

United States Court of Appeals

for the Armed Forces, Order

(Jan. 31, 2019) ................................................ 6a

United States Air Force

Court of Criminal Appeals, Opinion

(Oct. 19, 2018) ................................................ 8a

United States Court of Appeals

for the Armed Forces, Opinion

(Jul. 13, 2017) ............................................... 30a

Petition for Extraordinary Relief

in the Nature of a Writ of Mandamus

(Appendices Omitted)

(Jun. 4, 2017) ................................................ 45a

United States Air Force

Court of Criminal Appeals, Order

(Jun. 16, 2017) .............................................. 51a

Motion to Submit Document and Motion for

Leave to File Motion To Dismiss

(Aug. 29, 2018) ............................................. 55a

Petition for Extraordinary Writ

in the Nature of a Writ of Mandamus

(Appendices Omitted)

(May 30, 2018) .............................................. 62a

iii

Table of Authorities

Cases

Boudreaux v. United States NavyMarine Corps Court of Military

Review,

28 M.J. 181 (C.M.A. 1989) .............................. 17, 27

Brooks v. United States,

2016 U.S. Dist. LEXIS 183902

(N.D. Fla. Dec. 8, 2016) ......................................... 31

Brosius v. Warden,

278 F.3d 239 (3d Cir. 2002)................................... 32

Burns v. Wilson,

346 U.S. 137 (1953) ......................................... 29, 32

Chapman v. United States,

75 M.J. 598 (A.F. Ct. Crim. App.

2016) .......................................................... 15, 28, 30

Clinton v. Goldsmith,

526 U.S. 529 (1999) ........................................ 7-9, 23

Denedo v. United States,

66 M.J. 114 (C.A.A.F. 2008) .................................. 14

Ex parte Simons,

247 U.S. 231 (1918) ............................................... 22

Goldsmith v. Clinton,

48 M.J. 84 (C.A.A.F. 1998) ...................................... 8

Gray v. Gray,

645 Fed. Appx. 624 (10th Cir. 2016) ..................... 15

Gray v. United States,

76 M.J. 579 (A. Ct. Crim. App. 2017) ............. 15, 28

Gusik v. Schilder,

340 U.S. 128 (1950) ............................................... 13

Hollis v. Cruz,

2012 U.S. Dist. LEXIS 135345

(N.D. Tex. Jul. 24, 2012) ....................................... 31

Hurn v. Kallis,

2018 U.S. Dist. LEXIS 108024

(C.D. Ill. Jun. 28, 2018) ......................................... 31

Jenks v. Warden,

2018 U.S. Dist. LEXIS 77123

(S.D. Ohio May 7, 2018) ........................................ 31

Jeter v. United States,

77 M.J. 106 (C.A.A.F. 2017) .................................. 16

Kauffman v. Secretary of the Air Force,

415 F.2d 991 (D.C. Cir. 1969) ............................... 32

Lawrence v. McCarthy,

344 F.3d 467 (5th Cir. 2003) ................................. 30

Lewis v. Oddo,

2015 U.S. Dist. LEXIS 174302

(N. Dist. W. Va. Dec. 22, 2015) ............................. 31

Lewis v. United States,

77 M.J. 106 (C.A.A.F. 2017) .................................. 16

Loving v. United States,

62 M.J. 235 (C.A.A.F. 2005) ................. 11-13, 22, 29

Loving v. United States,

64 M.J. 132 (C.A.A.F. 2006) ............................. 12-13

LRM v. Kastenberg,

72 M.J. 364 (C.A.A.F. 2013) .................................... 8

Moore v. Akins,

30 M.J. 249 (C.M.A. 1990) .................................... 18

Nkosi v. Lowe,

38 M.J. 552 (A.F.C.M.R. 1993) ............................. 22

Noyd v. Bond,

395 U.S. 683 (1969) ................................ 7, 13, 29-30

Parisi v. Davidson,

405 U.S. 34 (1972) ................................................. 30

Parker v. Levy,

417 U.S. 733 (1974) ............................................... 28

Randolph v. HV,

76 M.J. 27 (C.A.A.F. 2017) ...................................... 7

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974) ............................................... 26

Richards v. James,

78 M.J. 323 (C.A.A.F. 2019) .................................... 1

Richards v. United States,

2018 U.S. LEXIS 4064, 138 S. Ct.

2707, 201 L. Ed. 2d 1099 (2018) ........................... 17

Roukis v. United States Army,

2014 U.S. Dist. LEXIS 160690

(S.D.N.Y. Nov. 14, 2014) ....................................... 31

Schlesinger v. Councilman,

420 U.S. 738 (1975) ............................... 13-14, 26-27

Sutton v. United States,

78 M.J. 537 (A.F. Ct. Crim. App.

2018) .......................................................... 15, 28, 30

United States v. Curtin,

44 M.J. 439 (C.A.A.F. 1996) .................................... 8

United States v. Denedo,

556 U.S. 904 (2009) ........................................passim

United States v. Gray,

77 M.J. 5 (C.A.A.F. 2017) ...................... 15-16, 20-21

United States v. Morgan,

346 U.S. 502 (1954) ......................................... 14, 25

United States v. Orzechowski,

65 M.J. 538 (N.M. Ct. Crim. App.

2006) ...................................................................... 10

United States v. Pena,

64 M.J. 259 (C.A.A.F. 2007) ............ 10-11, 19-20, 24

United States v. Richards,

No. ACM 38346, 2016 CCA LEXIS

285 (A.F. Ct. Crim. App. May 2, 2016)

(unpub. op.) ............................................................ 17

United States v. Richards,

76 M.J. 365 (C.A.A.F. 2017) .................................... 1

United States v. Spaustat,

57 M.J. 256 (C.A.A.F. 2002) .................................. 11

Valois v. Commandant, USDB-Fort

Leavenworth, No. 13-3029-KHV,

2015 U.S. Dist. LEXIS 137046

(CD. Kan. Oct. 7, 2015) ......................................... 20

Ward v. United States,

77 M.J. 106 (C.A.A.F. 2017) .................................. 16

Weaver v. Graham,

450 U.S. 24 (1981) ............................ 9-10, 20, 22, 24

Constitutional Provisions

U.S. CONST. art. I, § 8 ............................................... 26

U.S. CONST. art. III ............................................. 27, 30

Statutes and Regulations

10 U.S.C. § 113(b) (2018) .......................................... 19

10 U.S.C. § 852 (2018) .............................................. 19

vii

10 U.S.C. § 857 (2019) ................................................ 4

10 U.S.C. § 857(a)(4) (2019) ........................................ 4

10 U.S.C. § 857(c) (2019) ............................................ 4

10 U.S.C. § 857(c)(2) (2019) ...................................... 11

10 U.S.C. § 861 (2016) ................................................ 4

10 U.S.C. § 866(a) (2016) ............................................ 2

10 U.S.C. § 866(a) (2019) ............................................ 2

10 U.S.C. § 866(c) (2016) .................................. 2, 7, 19

10 U.S.C. § 866(d)(1) (2019)........................................ 2

10 U.S.C. § 867(a) (2016) ............................................ 3

10 U.S.C. § 867(a) (2019) ............................................ 3

10 U.S.C. § 867(a)(3) (2016) ................ i, 7-8, 10, 17, 26

10 U.S.C. § 871 (2016) .................................... 4, 11, 18

10 U.S.C. § 876 (2016) .......................................passim

10 U.S.C. § 876 (2019) ................................................ 6

10 U.S.C. § 952 (2018) .............................................. 19

28 U.S.C. § 1259(3) (2019) .......................................... 1

28 U.S.C. § 1651(a) (2019) .................................passim

Article 57, Uniform Code of Military

Justice (2019) ......................................................... 4

Article 57(a)(4), Uniform Code of

Military Justice (2019) ........................................... 4

Article 57(c), Uniform Code of Military

Justice (2019) ......................................................... 4

Article 57(c)(2), Uniform Code of

Military Justice (2019) ......................................... 11

viii

Article 61, Uniform Code of Military

Justice (2016) ......................................................... 4

Article 66(a), Uniform Code of Military

Justice (2016) ......................................................... 2

Article 66(c), Uniform Code of Military

Justice (2016) ......................................................... 2

Article 66(d)(1), Uniform Code of

Military Justice (2019) ........................................... 2

Article 67(a), Uniform Code of Military

Justice (2016) ......................................................... 3

Article 67(a), Uniform Code of Military

Justice (2019) ......................................................... 3

Article 67(a)(4), Uniform Code of

Military Justice (2019) ........................................... 4

Article 71, Uniform Code of Military

Justice (2016) ................................................ 4-5, 11

Article 76, Uniform Code of Military

Justice (2016) ................................................passim

Article 76, Uniform Code of Military

Justice (2019) ......................................................... 5

National Defense Authorization Act for

Fiscal Year 2017,

Pub. L. No. 114-328, § 5330,

130 Stat. 2932 (2016) .............................................. 2

National Defense Authorization Act for

Fiscal Year 2017,

Pub. L. No. 114-328, § 5331,

130 Stat. 2934 (2016) .............................................. 3

National Defense Authorization Act for

Fiscal Year 2017,

Pub. L. No. 114-328, § 5441,

130 Stat. 2967 (2016) .............................................. 4

Other Authorities

95 Cong. Rec. H5719-22 (daily ed. May

5, 1949) .................................................................. 32

Subcommittee No. 1 Consideration of

H.R. 5783, to Amend Titles 10, 14,

and 37, United States Code, to

Provide for Confinement and

Treatment of Offenders Against the

Uniform Code of Military Justice,

90th Cong. 8373-76 (1968) .................................... 20

PETITION FOR A WRIT OF CERTIORARI

Lieutenant Colonel James W. Richards IV

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Armed Forces (CAAF).

OPINIONS BELOW

The CAAF’s order denying reconsideration is not

reported. It is reproduced in the Appendix at Pet.

App. 4a. The CAAF’s order dismissing Petitioner’s

writ-appeal petition is reported at 78 M.J. 323

(C.A.A.F. 2019) and reproduced in the Appendix at

Pet. App. 6a. The opinion of the U.S. Air Force Court

of Criminal Appeals (AFCCA) denying the Petition for

Extraordinary Relief in the Nature of a Writ of

Mandamus is not reported. It is reproduced in the

Appendix at Pet. App. 8a. The CAAF’s decision

affirming the AFCCA is reported at 76 M.J. 365

(C.A.A.F. 2017) and reproduced in the Appendix at

Pet. App. 30a.

JURISDICTION

The CAAF granted review of Petitioner’s direct

appeal and affirmed the AFCCA on July 13, 2017.

Pet. App. 30a. The CAAF entered its judgment

regarding the writ-appeal petition on January 31,

2019, Pet. App. 6a, and denied reconsideration on

March 1, 2019. Pet. App. 4a. On May 22, 2019, the

Chief Justice extended the time within which to file a

petition for a writ of certiorari to July 9, 2019.1 The

jurisdiction of this Court rests on 28 U.S.C. § 1259(3).

1 Petitioner’s request for an extension listed former Secretary of

the Air Force Deborah Lee James and former Commandant of

the United States Disciplinary Barracks, Colonel D.L. Hinton, as

STATUTORY PROVISIONS INVOLVED

Article 66(a), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 866(a) (2016), Review by Court of

Criminal Appeals, stated in relevant parts:2

Each Judge Advocate General shall

establish a Court of Criminal Appeals

which shall be composed of one or more

panels, and each such panel shall be

composed of not less than three appellate

military judges. For the purposes of

reviewing court-martial cases, the court

may sit in panels or as a whole . . .

Article 66(c), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 866(c) (2016), Review by Court of

Criminal Appeals, stated:3

In a case referred to it, the Court of

Criminal Appeals may act only with

respect to the findings and sentence as

Respondents. Both individuals have since ceased in their

respective positions and were succeeded by the named

Respondents in this petition.

The Military Justice Act of 2016 (MJA 2016) subsequently

modified Article 66, UCMJ. See National Defense Authorization

Act of Fiscal Year 2017 (NDAA 2017), Pub. L. 114-328, div. E,

title LIX, § 5330, 130 Stat. 2932. However, the MJA 2016 did not

alter the cited language above. See Article 66(a), UCMJ, 10

U.S.C. § 866(a) (2019).

3 The MJA 2016 modified the above cited language; however, the

Courts of Criminal Appeals remain limited to acting “only with

respect to the findings and sentence,” and “may affirm only such

findings of guilty, and the sentence or such part or amount of the

sentence, as the Court finds correct in law and fact and

determines . . . should be approved.” Article 66(d)(1), UCMJ, 10

U.S.C. § 866(d)(1) (2019).

approved by the convening authority. It

may affirm only such findings of guilty

and the sentence or such part and

amount of the sentence, as it finds

correct in law and fact and determines,

on the basis of the entire record, should

be approved. In considering the record,

it may weigh the evidence, judge the

credibility of witnesses, and determine

controverted

questions

fact,

recognizing that the trial court saw and

heard the witnesses.

Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2016),

Review by the Court of Appeals for the Armed Forces,

stated:4

The Court of Appeals for the Armed

Forces shall review the record in—

(1) all cases in which the sentence, as

affirmed by a Court of Criminal Appeals,

extends to death;

(2) all cases reviewed by a Court of

Criminal Appeals which the Judge

Advocate General orders sent to the

Court of Appeals for the Armed Forces

for review; and

(3) all cases reviewed by a Court of

Criminal Appeals in which, upon

4 The MJA 2016 modified Article 67, UCMJ.

See NDAA 2017,

Pub. L. 114-328, div. E, title LIX, § 5331, 130 Stat. 2934.

However, the MJA 2016 altered the cited language above only to

the extent that certain notification is required prior to certifying

a case. Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2019).

petition of the accused and on good cause

shown, the Court of Appeals for the

Armed Forces has granted review.

Article 71, UCMJ, 10 U.S.C. § 871 (2016),

Execution of sentence; suspension of sentence, stated in

relevant parts:5

(b) If in the case of a commissioned

officer, cadet, or midshipman, the

sentence of a court-martial extends to

dismissal, that part of the sentence

providing for dismissal may not be

executed until approved by the Secretary

concerned or such Under Secretary or

Assistant Secretary as may be

designated by the Secretary concerned.

(c)(1) If a sentence extends to death,

dismissal, or a dishonorable or badconduct discharge and if the right of the

accused to appellate review is not

waived, and an appeal is not withdrawn,

under section 861 of this title (article 61),

that part of the sentence extending to

death, dismissal, or a dishonorable or

bad-conduct discharge may not be

executed until there is a final judgment

5 The MJA 2016 repealed Article 71, UCMJ.

See NDAA 2017,

Pub. 114-328, div. E, title LXIII, § 5541, 130 Stat. 2967. Much of

the above cited language, with some modifications, now appears

in Article 57, UCMJ, 10 U.S.C. § 857 (2019). As applicable to this

petition, the Secretary of the Air Force must still approve the

dismissal of a commissioned officer. See Article 57(a)(4), UCMJ,

10 U.S.C. § 857(a)(4) (2019). The completion of appellate review

remains largely the same. See Article 57(c), UCMJ, 10 U.S.C. §

857(c) (2019).

as to the legality of the proceedings (and

with respect to death or dismissal,

approval under subsection (a) or (b), as

appropriate). A judgment as to legality

of the proceedings is final in such cases

when review is completed by a Court of

Criminal Appeals and -(A) the time for the accused to file a

petition for review by the Court of

Appeals for the Armed Forces has

expired and the accused has not filed a

timely petition for such review and the

case is not otherwise under review by

that Court;

(B) such a petition is rejected by the

Court of Appeals for the Armed Forces;

with the judgment of the Court of

Appeals for the Armed Forces and -(i) a petition for a writ of certiorari is not

filed within the time limits prescribed by

the Supreme Court;

(ii) such a petition is rejected by the

Supreme Court; or

(iii) review is otherwise completed in

accordance with the judgment of the

Supreme Court.

Article 76, 10 U.S.C. § 876 (2019), Finality of

proceedings, findings, and sentences, states:6

The appellate review of records of trial

provided

this

chapter,

the

proceedings, findings, and sentences of

courts-martial as approved, reviewed, or

affirmed as required by this chapter, and

all dismissals and discharges carried

into execution under sentences by

courts-martial

following

approval,

review, or affirmation as required by this

chapter, are final and conclusive. Orders

publishing the proceedings of courtsmartial and all action taken pursuant to

those proceedings are binding upon all

departments, courts, agencies, and

officers of the United States, subject only

to action upon a petition for a new trial

as provided in section 873 of this title

(article 73) and to action by the Secretary

concerned as provided in section 874 of

this title (article 74), and the authority of

the President.

28 U.S.C. §1651(a) (2019), Writs, states:

The Supreme Court and all courts

established by Act of Congress may issue

all writs necessary or appropriate in aid

of their respective jurisdictions and

agreeable to the usages and principles of

law.

6 The MJA 2016 did not alter Article 76, UCMJ.

STATEMENT OF THE CASE

A. Legal Background

The All Writs Act, 28 U.S.C. § 1651(a), grants

military appellate courts the authority to issue

extraordinary writs “necessary or appropriate in aid

of their respective jurisdictions.” See Clinton v.

Goldsmith, 526 U.S. 529, 534 (1999) (citing Noyd v.

Bond, 395 U.S. 683, 695, n.7 (1969)). The Act itself

and “the extraordinary relief [it] authorizes are not a

source of subject matter jurisdiction.” United States

v. Denedo, 556 U.S. 904, 913 (2009). Rather, a court’s

power to grant relief “is contingent on that court’s

subject-matter jurisdiction over the case or

controversy.” Id. at 911. To this end, Congress

determines the subject-matter jurisdiction of military

appellate courts. Id. at 912 (citing Goldsmith, 526

U.S. at 533-34).

Article 66(c), UCMJ (hereinafter Article 66(c)),

authorized the Service Courts of Criminal Appeals

(CCAs) to act only with respect to the findings and

sentence of a court-martial.7 Article 67(a)(3), UCMJ

(hereinafter Article 67(a)(3)), granted the CAAF

jurisdiction over all cases reviewed by the CCAs. Such

cases “include[ ] a final action by an intermediate

appellate court on a petition for extraordinary relief.”

See Randolph v. HV, 76 M.J. 27, 30 (C.A.A.F. 2017)

7 This petition references UCMJ provisions in the past tense due

to their application during the pendency of Petitioner’s direct and

writ appeals, and the MJA 2016’s subsequent modifications to

the UCMJ. Unless otherwise noted, the delineated authorities

from the superceded Articles remain extant under the current

UCMJ. Compare, e.g., Article 66(c) (2016) with Article 66(d)(1)

(2019).

(citing LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F.

2013) (quoting United States v. Curtin, 44 M.J. 439,

440 (C.A.A.F. 1996))).

This Court considered the scope of the All Writs Act

in relation to the CAAF’s Article 67(a)(3) appellate

authority in Clinton v. Goldsmith, 526 U.S. 529. In

that case, Air Force Major James Goldsmith never

challenged his court-martial conviction or sentence,

which did not include dismissal. Id. at 531-32.

Instead, he requested extraordinary relief when the

Government sought to drop him from the rolls of the

Air Force due to his conviction and sentence. Id. at

531-33.

The CAAF subsequently “asserted

jurisdiction and purported to justify reliance on the

All Writs Act in [that] case on the view that ‘Congress

intended [it] to have broad responsibility with respect

to administration of military justice.’” Id. at 534

(quoting Goldsmith v. Clinton, 48 M.J. 84, 86-87

(C.A.A.F. 1998)). This Court disagreed, however,

concluding the CAAF’s jurisdiction was statutorily

limited to reviewing cases reviewed by the CCAs,

“which in turn have jurisdiction to ‘review courtmartial cases.’” Id. at 535 (quoting 10 U.S.C. § 866(a)).

This Court then reasoned:

Since the Air Force’s action to drop

[Major Goldsmith] from the rolls was an

executive action, not a “finding” or

“sentence,” that was (or could have been)

imposed in a court-martial proceeding,

the elimination of [Major] Goldsmith

from the rolls appears straightforwardly

to have been beyond the CAAF’s

jurisdiction to review and hence beyond

the “aid” of the All Writs Act in reviewing

it.

Id. (citations omitted).

This Court further declined to interpret the All

Writs Act as conferring to the CAAF the authority to

preserve the integrity of sentences imposed by courtsmartial, stating: “there is no source of continuing

jurisdiction for the CAAF over all actions

administering sentences that the CAAF at one time

had the power to review.” Id. at 536. Nevertheless,

this Court distinguished the facts in Goldsmith, which

addressed an action independent from the sentence,

with scenarios involving military authorities seeking

“to alter a judgment by revising a court-martial

finding and sentence to increase punishment.” Id.

To determine whether a post-trial action qualifies

as altering a sentence, this Court’s decision in Weaver

v. Graham, 450 U.S. 24 (1981), is instructive. In

Weaver, this Court granted a petition for a writ of

habeas corpus challenging post-sentencing changes to

formulas rewarding prisoners for good conduct with

sentence reductions. Id. Specifically, this Court found

that a Florida statute that altered the availability of

“gain time for good conduct” represented an

unconstitutional ex post facto law when applied to the

petitioner, who committed his crime prior to the

statute’s enactment but who was still subject to the

statute’s less generous formula for gain-time

deductions. Id. at 25. In concluding the statute was

impermissibly retroactive and disadvantageous to the

petitioner, this Court declined to limit its review

based on the State’s argument that the gain-time

provision’s predecessor was not technically part of the

petitioner’s sentence. Id. at 31-32. This Court instead

found it sufficient, for ex post facto application, that

the statute altered the petitioner’s “effective sentence”

and thus increased his punishment for the crime. Id.

at 32.

The CAAF has yet to apply Weaver to cases

involving the application of good conduct credit in

military jurisprudence.

Cf. United States v.

Orzechowski, 65 M.J. 538 (N.M. Ct. Crim. App. 2006)

(Navy-Marine Corps Court of Criminal Appeals’ citing

Weaver in granting petition for habeas corpus due to

the Navy’s ex post facto application of good conduct

time credits). However, the CAAF has similarly found

that its jurisdiction under Article 67(a)(3) is not

limited to the technical parameters of a prisoner’s

sentence. For example, in United States v. Pena, 64

M.J. 259 (C.A.A.F. 2007), the CAAF considered a

challenge to the Department of Defense’s authority to

establish certain requirements associated with a

Mandatory Supervised Release program. Although

noting that the scope of its direct appeal review did

“not extend to supervision of all aspects of the

confinement and release process,” the CAAF

explained:

Our review of post-trial confinement and

release conditions on direct appeal is

limited to the impact of such conditions

on the findings and the sentence.

Accordingly, our review in the present

appeal focuses on whether the post-trial

conditions at issue: (1) constituted cruel

or unusual punishment or otherwise

violated an express prohibition in the

UCMJ;

(2)

unlawfully

increased

Appellant’s punishment; or (3) rendered

his guilty plea improvident.

Id. at 264 (emphasis added) (citations omitted). The

CAAF has further acknowledged that prisoners – like

the petitioner in Weaver and Petitioner here – may

seek judicial relief for good conduct time disputes

through petitions for extraordinary relief. United

States v. Spaustat, 57 M.J. 256, 263 (C.A.A.F. 2002).

In terms of when to file such petitions, determining

when a case is “final” has proved critical.

For military cases involving commissioned officers

sentenced to dismissal, a case was final only after

“there [was] a final judgment as to the legality of the

proceedings.” Article 71, UCMJ (hereinafter Article

71).8 This final judgment occurred when the CCA’s

review was complete and an appellant exhausted (or

declined to pursue) his or her direct appeal at the

CAAF and this Court. Id. Thereupon, the Service

Secretary was required to approve the dismissal for

the case to become “final and conclusive” under Article

76, UCMJ (hereinafter Article 76).

The CAAF considered the interplay between

Articles 71 and 76, and how it affected the court’s

collateral review jurisdiction, in Loving v. United

States (Loving I), 62 M.J. 235 (C.A.A.F. 2005). In that

case, Army Private Dwight Loving filed two writs of

error coram nobis after the completion of his direct

8 Article 71 applied during the pendency of Petitioner’s appellate

proceedings. The Article’s finality requirement is now codified in

Article 57(c)(2), UCMJ, 10 U.S.C. § 857(c)(2) (2019).

appeal but prior to the approval of his sentence.9 Id.

at 236. Following an extensive analysis, the CAAF

first concluded that it had collateral review

jurisdiction during the period after final judgment

under Article 71, but before the case was final

pursuant to Article 76.10 Id. at 239-46. However, the

CAAF held that Private Loving’s writs of coram nobis

were improper vehicles for relief, as such writs were

only available when a writ of habeas corpus – referred

to as “the Great Writ” due to its tremendous scope and

flexibility – was otherwise unavailable. Id. at 251-56.

Finding that the All Writs Act authorized it to

entertain a writ of habeas corpus, the CAAF declined

to treat Private Loving’s “erroneously filed coram

nobis petitions simply as petitions for habeas corpus,”

and instead dismissed the petitions without prejudice

to afford Private Loving an opportunity to refile

utilizing writs of habeas corpus. Id. at 259-60.

Private Loving subsequently accepted the CAAF’s

invitation and used a single habeas corpus petition to

present the exact issues he tried to raise through

coram nobis – ineffective assistance of counsel

allegations stemming from appellate decisions

rendered during the pendency of his appeal. Loving v.

United States (Loving II), 64 M.J. 132 (C.A.A.F. 2006).

In an opinion concurring with the majority’s decision

to remand the case for further fact finding, Judge

Private Loving received a death sentence, which required

Presidential approval. Loving I, 62 M.J. at 240 (citing Article

71(a), UCMJ).

The CAAF expressly declined to address whether it had

“jurisdiction after a case is final under Article 76 [UCMJ]”

because that issue was not raised. Loving I, 62 M.J. at 245 n. 61.

Effron reiterated a significant point addressed in

Loving I:

During the period between final legal

review under Article 71(a), UCMJ, and

final action under Article 76, UCMJ, a

servicemember is required to exhaust his

or her remedies under the UCMJ before

seeking collateral review in the Article

III courts. One of those remedies is a

petition to this Court for a writ of habeas

corpus under the All Writs Act.

Id. at 154 (Effron, J. concurring) (citations omitted).

The exhaustion requirement cited by Judge Effron

is rooted, in part, in this Court’s recognition that “the

military court system will vindicate servicemen’s

constitutional rights.” Schlesinger v. Councilman,

420 U.S. 738, 758 (1975). This Court has further

articulated “the need for ‘a substantial degree of

civilian deference to the military tribunals.’” Loving

I, 62 M.J. at 250 (quoting Noyd, 395 U.S. at 693-94

(quoting Gusik v. Schilder, 340 U.S. 128, 131-32

(1950)). Such deference is justified due to “both

judicial economy (avoiding needless civilian judicial

intervention) and respect for [the CAAF’s] expertise in

interpreting the technical provisions of the UCMJ.”

Id. (citing Noyd, 395 U.S. at 696).

Following the CAAF’s decisions in Loving I and

Loving II, this Court considered the force and scope of

Article 76 with respect to collateral review jurisdiction

in United States v. Denedo, 556 U.S. 904. Jacob

Denedo was a native Nigerian who served in the U.S.

Navy for approximately nine years before he was

court-martialed and punitively discharged for his role

in defrauding a community college. Id. at 907.

Several years after his case was “final and conclusive”

under Article 76, Mr. Denedo was notified of the

Government’s intent to deport him based on his courtmartial conviction. Id. Mr. Denedo subsequently filed

a coram nobis petition with the Navy-Marine Corps

Court of Criminal Appeals (NMCCA), contending that

his guilty plea was improvident due to his defense

counsel’s erroneous deportation advice. Id.

Finding that Mr. Denedo’s allegations challenged

the validity of his conviction, this Court held that the

NMCCA had jurisdiction to entertain the petition

under its authority to act on the “findings and

sentence” pursuant to Article 66. Id. at 915-16. This

Court correspondingly concluded that because the

NMCCA had jurisdiction over the petition, the CAAF

had jurisdiction “to entertain [Mr. Denedo’s] appeal

from the NMCCA’s judgment.” Id. at 915.

This Court then considered, and soundly rejected,

the Government’s contention that the finality

provision of Article 76 affirmatively prohibited coram

nobis review. Id. at 915-16. “Just as the rules of

finality did not jurisdictionally bar the court in

[United States v. Morgan, 346 U.S. 502 (1954)] from

examining its earlier judgment, neither does the

principle of finality bar the NMCCA from doing so

here.” 556 U.S. at 916. Thus, this Court reaffirmed

its long-standing view that Article 76 served as a

prudential constraint on collateral review rather than

a jurisdictional limitation. See Denedo v. United

States, 66 M.J. 114, 120 (C.A.A.F. 2008) (citing

Schlesinger, 420 U.S. at 745).

In the years following Denedo, military appellate

courts have increasingly concluded that finality under

Article 76 precludes the availability of extraordinary

relief. For example, both the AFCCA and the Army

Court of Criminal Appeals have held that habeas

corpus petitions may not be reviewed in the military

justice system after a case is “final and conclusive.”

See, e.g., Chapman v. United States, 75 M.J. 598, 600

(A.F. Ct. Crim. App. 2016); Gray v. United States

(Gray I), 76 M.J. 579, 582 (A. Ct. Crim. App. 2017).

The AFCCA has likewise held that Article 76 finality

extinguishes its jurisdiction over writs of mandamus

and prohibition. Sutton v. United States, 78 M.J. 537

(A.F. Ct. Crim. App. 2018). Perhaps most significant,

however, has been the CAAF’s conclusions regarding

corum nobis petitions.

Specialist Ronald Gray, one of just four men on the

military’s death row, sought corum nobis relief in the

military justice system only to be spurned due to his

purported ability to seek habeas relief from other

jurisdictions.11 See, e.g., Gray I, 76 M.J. 579; Gray v.

Gray (Gray II), 645 Fed. Appx. 624, 625 (10th Cir.

2016). He then dutifully submitted habeas petitions

to the federal courts, who ultimately declined review

until he exhausted his available remedies with the

military courts. See Gray I, 76 M.J. at 581-82. Yet,

when Specialist Gray subsequently petitioned the

CAAF for corum nobis relief, the court held that it did

not have jurisdiction since the case was final under

the UCMJ. United States v. Gray (Gray III), 77 M.J.

5, 6 (C.A.A.F. 2017) (“The threshold question is

whether this Court has jurisdiction to entertain a

request for coram nobis in a case that is final in all

respects under the UCMJ. We hold that we do not.”).

11 Specialist Gray was also the petitioner in Gray I, 76 M.J. 579.

This conclusion was in clear and direct conflict with

Denedo:

The Government counters that Article 76

of the UCMJ, 10 U.S.C. § 876,

‘affirmatively prohibit[s] the type of

collateral review sought by respondent.’

That is incorrect.

556 U.S. at 915 (citations omitted). Notably, the

CAAF appears to have since repeated its error by

summarily denying review in at least three other

cases seeking post-finality coram nobis relief. See

Ward v. United States, 77 M.J. 106 (C.A.A.F 2017);

Lewis v. United States, 77 M.J. 106 (C.A.A.F. 2017);

Jeter v. United States, 77 M.J. 106 (C.A.A.F. 2017).

The CAAF’s indisputable error in Gray III

notwithstanding, none of the military’s cases

prohibiting post-finality extraordinary relief involved

petitions filed before a case became “final and

conclusive” under Article 76. However, prior to the

present case, the CAAF’s own precedent suggested

that once jurisdiction vested in the CCAs, those courts

retained the statutory authority (and responsibility)

to review extraordinary writs to completion,

irrespective of any actions by external parties:

We hold simply that a [CCA] which has

acquired jurisdiction over a case retains

that governance until the decision is

either final or has been appealed to the

[CAAF] pursuant to Article 67(b), UCMJ,

10 U.S.C. § 867(b). This is true whether

jurisdiction is acquired pursuant to

Article 62, 66, or 69; the All Writs Act, 28

U.S.C. § 1651(a); or by remand from the

[CAAF], to the extent of the terms of the

remand.

Once jurisdiction is acquired pursuant to

Article 66, the [CCA] has a statutory

duty to review the case to completion

unless the accused has waived his right

to appeal or withdrawn it.

Boudreaux v. United States Navy-Marine Corps Court

of Military Review, 28 M.J. 181, 182 (C.M.A. 1989)

(citations omitted).

B. Procedural History – Direct Appeal

On February 21, 2013, a general court-martial

sentenced Petitioner to dismissal, confinement for 17

years, and forfeiture of all pay and allowances. The

AFCCA affirmed the findings and sentence of

Petitioner’s court-martial on May 2, 2016. United

States v. Richards, No. ACM 38346, 2016 CCA LEXIS

285 (A.F. Ct. Crim. App. May 2, 2016) (unpub. op.).

The CAAF granted review and affirmed the AFCCA’s

decision on July 13, 2017. Pet. App. 30a. This Court

denied Petitioner’s petition for a writ of certiorari on

June 28, 2018. Richards v. United States, 2018 U.S.

LEXIS 4064, 138 S. Ct. 2707, 201 L. Ed. 2d 1099

(2018). The Secretary of the Air Force approved

Petitioner’s sentence and executed his dismissal on

August 27, 2018. See Pet. App. 16a.

C. Procedural History – Writ

On June 4, 2017, while Petitioner’s direct appeal

was pending before the CAAF under Artic1e 67(a)(3),

Petitioner filed a pro se Petition for Extraordinary

Relief in the Nature of a Writ of Mandamus with the

AFCCA, seeking relief from the Government’s ex post

facto application of good conduct time credits

(hereinafter writ-petition). Pet. App. 45a. On June

16, 2017, the AFCCA denied the writ-petition for lack

of jurisdiction, opining that the CAAF’s pending

review had divested the AFCCA of authority over the

case unless subsequently remanded. Pet. App. 51a

(citing Moore v. Akins, 30 M.J. 249 (C.M.A. 1990)).

On July 14, 2017, the day after the CAAF’s direct

appeal decision, Petitioner moved for reconsideration

of the AFCCA’s denial of his writ-petition. Pet. App.

65a. On November 9, 2017, Petitioner filed a petition

for a writ of certiorari with this Court regarding issues

raised in his direct appeal. Pet. App. 57a.

On May 30, 2018, Petitioner filed a mandamus

petition with the CAAF, asking the court to order the

AFCCA to rule on his reconsideration motion

regarding the writ-petition. Pet. App. 62a. On June

4, 2018, the AFCCA granted Petitioner’s motion for

reconsideration and ordered the Government to show

cause why the court had no jurisdiction or why the

writ should not issue. Pet. App. 57a. The parties then

filed briefs supporting their respective positions. See

Pet. App. 16a.

Approximately one month after the final filing

relating to the show cause order, the Secretary of the

Air Force approved Petitioner’s sentence and executed

his discharge. See Pet. App. 16a. Two days later, on

August 29, 2018, the Government filed a motion to

dismiss the writ-petition on the basis that direct

review was final pursuant to Articles 71 and 76. Pet.

App. 55a.

On October 19, 2018, the AFCCA issued its

decision on the writ-petition. Pet. App. 8a. First, it

declined the Government’s request to dismiss based

on the case’s finality under Article 76, reasoning that

the writ-petition was docketed and briefed prior such

finalization. Pet. App. 16a. The AFCCA then

concluded it possessed jurisdiction to review the writ.

Pet. App. 16a-21a. The AFCCA’s rationale focused on

its connected authorities under the All Writs Act and

Article 66(c) to act “with respect to the findings and

sentence as approved by the convening authority.”

Pet. App. 16a-17a. Citing to the “narrow framework

of Pena [64 M.J. 259],” in which the CAAF sanctioned

the direct appeal review of post-trial confinement

conditions that unlawfully increased an appellant’s

punishment, the AFCCA held that it had “the

authority to review whether Petitioner’s approved

sentence to confinement is being unlawfully

increased” due to the government’s alleged ex post

facto application of good conduct time credits. Pet.

App. 20a-21a. Ultimately, however, the AFCCA

denied relief on the merits.12 Pet. App. 29a.

Although unnecessary for the resolution of the presented

question, the AFCCA erred in deciding against Petitioner on the

merits due to fundamental misinterpretations of federal

statutes.

Specifically, the AFCCA concluded that, unless

otherwise preempted by the President, the Secretary of Defense

(SecDef) has “plenary authority over all [Department of Defense

(DoD)] matters.” Pet. App. 28a. However, the statute upon

which the AFCCA based its decree, 10 U.S.C. § 113(b) (2018),

further limited the SecDef’s authority subject “to this title and

section 2 of the National Security Act of 1947 . . .” (emphasis

added). Applied in conjunction with 10 U.S.C. § 952 (2018),

which solely authorized the Service Secretaries to provide a

system of parole for offenders, the SecDef’s modification of DoD

policy regarding good conduct time required implementation by

the Air Force to be effective. This reading is consistent with the

legislative history of 10 U.S.C. § 852 (2018), which envisioned the

Petitioner appealed the AFCCA’s decision on the

writ-petition to the CAAF. On January 31, 2019, the

CAAF dismissed the writ-appeal petition “for lack of

jurisdiction.” Pet. App. 51. On March 1, 2019, the

CAAF denied Petitioner’s motion for reconsideration.

Pet. App. 4a.

REASONS FOR GRANTING THE PETITION

As this Court established in Denedo, finality under

Article 76 does not act as a per se prohibition against

post-finality extraordinary writs. This is because a

court of appeals can and must “protect the integrity of

its earlier judgments,” regardless of timing. 556 U.S.

at 916. Inexplicably, the CAAF refuses to abide by

Denedo’s controlling precedent, as illustrated by the

present case and Gray III. On this fact alone,

intervention by this Court is necessary to correct and

guide military jurisprudence. But there is additional

justification for granting certiorari.

Service Secretaries implementing DoD policies through

individual service regulations.

See Subcommittee No. 1

Consideration of H.R. 5783, to Amend Titles 10, 14, and 37,

United States Code, to Provide for Confinement and Treatment of

Offenders Against the Uniform Code of Military Justice, 90th

Cong. 8373-76 (1968). Taking this legislative history into

consideration, in conjunction with Pena, 64 M.J. 259, Petitioner

should have prevailed on the merits as the change to the rule

governing good conduct time credit was retroactively applied to

Petitioner in violation of the Ex Post Facto Clause and Weaver,

450 U.S. 24. Neither the AFCCA, nor the federal district court

decision that influenced the AFCCA’s decision, addressed these

matters. Pet. App. 24a-29a (citing Valois v. Commandant,

USDB—Fort Leavenworth, No. 13-3029-KHV, 2015 U.S. Dist.

LEXIS 137046 (D. Kan. Oct. 7, 2015)).

Due to a fundamental misinterpretation of finality

under Article 76 and its effect on the appellate

process, the CAAF has created a rule of law that

conflicts with the UCMJ. The CAAF’s erroneous

views have in turn sanctioned and encouraged inferior

military appellate courts to adopt similarly restrictive

positions on their post-finality responsibilities. This

growing trend purporting the military courts’ lack of

jurisdiction over post-finality extraordinary writs has

far-reaching consequences, as military members have

been forced to seek relief in other judicial forums and

will continue to do so in increasing numbers.

Without this Court’s involvement, the federal court

system may soon find itself mired in military-specific

issues, with myriad civilian judges becoming the final

arbiters over specialized military claims. This is not

the fate envisioned by Congress, which justifiably

sought to avoid the disparate treatment of

servicemembers by charging the CAAF with the

responsibility of maintaining uniformity in military

cases. Civilian courts will instead be overseeing the

military justice system, tasked even with determining

the validity of courts-martial. Given the unique

nature and disciplinary purpose of military justice,

supervisory responsibility for its administration

should and must remain in the CAAF and CCAs.

A. The CAAF’s decision conflicts with this

Court’s controlling precedent.

The CAAF’s conclusion that it lacked jurisdiction

in this case aligns with its rationale from Gray III,

where it found it was not statutorily authorized to

review a coram nobis petition filed after Article 76

finality. 77 M.J. at 6. However, this Court expressly

rejected this “incorrect” proposition in Denedo. 556

U.S. at 915 (citations omitted). This Court’s rationale

was that Mr. Denedo’s petition – alleging ineffective

assistance of counsel at trial – challenged the validity

of his underlying conviction. Id. at 913. Accordingly,

the petition represented “a further ‘step in [Mr.

Denedo’s] criminal appeal,’” and “the NMCCA’s

jurisdiction to issue the writ derive[d] from the earlier

jurisdiction it exercised to hear and determine the

validity of the conviction on direct review.” Id. at 914.

(citation omitted). The same principles apply here.

Although styled as a writ of mandamus vice coram

nobis, the writ in the present case related to the

AFCCA’s earlier judgment on Petitioner’s sentence.13

As identified in Weaver, post-sentencing modifications

to formulas that calculate confinement credit, though

not technically part of a sentence adjudged at trial,

impermissibly change the “quantum of punishment” if

applied retroactively to the disadvantage of a

prisoner. 450 U.S. at 31-33. This is precisely what

Petitioner complained about in his writ-petition,

alleging the Air Force’s alteration of its good conduct

time credits increased his effective sentence. Pet.

App. 45a; cf. Weaver, 450 U.S. at 32. Consequently,

the AFCCA could exercise jurisdiction over

Petitioner’s later writ-petition because it possessed

the earlier authority to review the validity and

appropriateness of Petitioner’s sentence under Article

Petitioner filed his writ pro se. Moreover, Petitioner was

precluded from seeking coram nobis relief due to his continued

confinement. See, e.g., Loving I, 62 M.J. at 254; cf. Nkosi v. Lowe,

38 M.J. 552, 553 (A.F.C.M.R. 1993) (“The label placed on a

petition for extraordinary relief is of little significance.”) (citing

Ex parte Simons, 247 U.S. 231, 240 (1918)) (other citations

omitted).

66 and, in fact, affirmed his sentence. As in Denedo,

the writ-petition represented just a further step in

Petitioner’s appeal and served to protect the integrity

of the AFCCA’s previous judgment.

This contention does not contravene Goldsmith,

where this Court checked the CAAF’s attempt to

expand its authorities under the All Writs Act. 526

U.S. 529. Rather, Goldsmith is distinguishable in that

the underlying allegations related to an executive

action unconnected to the findings or sentence. Id. at

535. This case conversely involves facts explicitly

identified in Goldsmith as warranting jurisdiction

under the All Writs Act:

It would presumably be an entirely

different matter if a military authority

attempted to alter a judgment by revising

a court-martial finding and sentence to

increase the punishment, contrary to the

specific provisions of the UCMJ, and it

certainly would be a different matter

when such a judgment had been affirmed

by an appellate court. In such a case, as

the Government concedes, [ ], the All

Writs power would allow the appellate

court to compel adherence to its own

judgment.

Id. at 536 (citations omitted).

Notably, the CAAF itself has acknowledged the

authority of military appellate courts to review

allegations on direct appeal like those raised by

Petitioner in his writ-petition:

Our review of post-trial confinement and

release conditions on direct appeal is

limited to the impact of such conditions

on the findings and the sentence.

Accordingly, our review in the present

appeal focuses on whether the post-trial

conditions at issue . . . unlawfully

increased Appellant’s punishment . . .

Pena, 64 M.J. at 264 (emphasis added). When read in

conjunction with Denedo, Goldsmith, and Weaver, the

CAAF’s framework compels the conclusion that the

AFCCA was correct in finding it had jurisdiction “to

review whether Petitioner’s approved sentence to

confinement [was] being unlawfully increased.” Pet.

App. 21a.

The soundness of the AFCCA’s

jurisdictional analysis is even more pronounced given

the particular facts of Petitioner’s case.

Petitioner first submitted his request for

extraordinary relief on June 4, 2017.14 Pet. App. 45a.

Following the AFCCA’s initial denial, Petitioner

timely sought reconsideration. Pet. App. 65a. The

AFCCA then declined to act on the motion over the

next 320 days, whereupon Petitioner sought to compel

a decision by filing a writ of mandamus with the

CAAF. Pet. App. 62a. On June 4, 2018, the AFCCA

finally acted, granting Petitioner’s reconsideration

motion and ordering briefs. Pet. App. 16a, 57a. On

August 27, 2018, approximately one month after the

last brief was filed regarding the writ-petition, the

Secretary of the Air Force approved Petitioner’s

sentence and executed his dismissal, thus rendering

his case final under Article 76. Pet. App. 16a.

14 The AFCCA received the request on June 6, 2017.

51a-52a.

Pet. App.

Thereafter, on October 19, 2018, the AFCCA ruled on

the writ-petition. Pet. App. 8a.

Given this tortuously protracted timeline, along

with Petitioner’s persistent attempts to seek relief

pre-Article 76 finality, the AFCCA appropriately

declined the Government’s request to dismiss for lack

of jurisdiction. See Pet. App. 16a, 60a. Denedo

sanctioned a CCA’s authority to entertain a coram

nobis petition filed several years after the case’s

finalization under Article 76, and on an issue that

similarly traced back to the CCA’s earlier judgment.

556 U.S. 904. The AFCCA in this case was thus

equally (if not more) justified in finding it had

jurisdiction to entertain Petitioner’s writ-petition,

filed more than a year prior to Article 76 finality. Cf.

Denedo, 556 U.S. at 916 (“Just as the rules of finality

did not jurisdictionally bar the court in Morgan [346

U.S. 502] from examining its earlier judgment,

neither does the principle of finality bar the NMCCA

from doing so here.”).

Unfortunately, the CAAF declined to articulate its

rationale when it dismissed Petitioner’s writ-appeal

on jurisdictional grounds. Pet. App. 7a. However, the

implication is clear. Either the CAAF concluded that

the AFCCA erred by exercising jurisdiction over

Petitioner’s post-finality writ-petition, in which case

the CAAF was similarly barred from entertaining the

post-finality writ-appeal; or, the AFCCA was justified

in reviewing the writ-petition given its pre-finality

submission, but that the CAAF was barred from

considering the post-finality writ-appeal. Since both

scenarios conflict with Denedo, the CAAF’s decision

was erroneous and warrants correction.

B. The CAAF’s decision conflicts with the UCMJ

and contravenes Congressional intent to have

military courts serve as the primary source for

servicemembers seeking collateral relief.

Article 76 states only that, upon conclusion of

direct appellate review, “the proceedings, findings,

and sentences of courts-martial . . . are final and

conclusive.” This provision does not address the

authority of military appellate courts to fashion

collateral relief, and this Court disfavors repeals by

implication, particularly where “the asserted repealer

would remove a remedy otherwise available.”

Schlesinger, 420 U.S. at 752 (citing Regional Rail

Reorganization Act Cases, 419 U.S. 102, 133-36

(1974)).

As applied to the present case, the CAAF’s

jurisdictional dismissal did not merely represent a

misinterpretation of Article 76 and its effect on

collateral review. Rather, the decision served as an

abdication of the CAAF’s appellate authority under

Article 67(a)(3), stripping Petitioner of a significant

and Congressionally-favored remedy.

Congress created the military appellate courts

pursuant to its authority to enact legislation under

Article I, § 8 of the Constitution. As observed by this

Court, the status of the CAAF and the CCAs as Article

I courts should compel them to be more attuned to

their jurisdictional limits and responsibilities than

their federal judicial brethren. See Denedo, 556 U.S.

at 912. These responsibilities include acting as the

first and primary source for servicemembers seeking

collateral relief. Indeed, the doctrines of abstention

and exhaustion require servicemembers to seek

remedies through military courts prior to turning to

Article III judicial bodies; a requirement designed to

respect “congressional judgment . . . that the military

court will vindicate a servicemen’s constitutional

rights.” Schlesinger, 420 U.S. at 758.

In this case, however, after the AFCCA exercised

jurisdiction and denied Petitioner relief on the merits,

the CAAF decided it lacked the authority to entertain

Petitioner’s appeal. Pet. App. 7a. This decision

ensured Petitioner would be forced to seek relief

elsewhere – in contravention of Congressional intent

to have military cases remain, to the extent

practicable, within the military justice system – and

conflicted with Article 67(a)(3).

Article 67(a)(3) provided the CAAF jurisdiction

“over all cases reviewed by a [CCA] in which, upon

petition of the accused and good cause shown, the

[CAAF] has granted a review.” Akin to this Court’s

reasoning in Denedo, because the AFCCA exercised its

jurisdiction and rendered a decision in Petitioner’s

case, “the CAAF had jurisdiction to entertain”

Petitioner’s appeal from AFCCA’s judgment upon a

showing of good cause. 556 U.S. at 915; see also

Boudreaux, 28 M.J. 181. Consequently, the CAAF had

one of three statutory options:

1. Conclude that Petitioner failed to

show good cause for review and decline

to review the writ-appeal;

2. Review the writ-appeal and overturn

the AFCCA’s conclusion that jurisdiction

existed over the writ of mandamus; or

3. Review the writ-appeal on the merits.

An option unavailable to the CAAF was the option

it ultimately chose: rule that the CAAF did not have

jurisdiction to adjudicate Petitioner’s appeal of the

lower court’s decision on his writ of mandamus. This

jurisdictional punt effectively authorized the

Secretary of the Air Force to divest the court of

jurisdiction over writ-appeals from lower courts; a

scenario unsupported in law, in conflict with

Congressional intent, and clearly contrary to the

CAAF’s statutory appellate authority.

C. The CAAF’s decision will result in more

servicemembers seeking extraordinary relief

through the civilian court system. This will

increase the likelihood of servicemembers being

disparately treated, and will supplant the

military courts as arbiters over military justice.

The CAAF’s refusal to exercise jurisdiction over

Petitioner’s writ-appeal has far-reaching implications.

As a starting point, the decision signals to the CCAs

that they need not address post-trial extraordinary

writs, whether filed before or after Article 76

finalization. As illustrated in this case, a CCA can

decline to act on a pre-Article 76 writ pending direct

appellate review, and then issue its ruling just prior

to case finality or sometime thereafter. The former

scenario leaves little (if any) time for a writ-appeal,

whereas the latter – assuming the CCA, like the

AFCCA here, found it still possessed jurisdiction –

would purportedly preclude any further review by the

CAAF. And in terms of writs filed post-Article 76

finality, the CCAs would apparently lack jurisdiction

entirely for review. See Chapman, 75 M.J. 598; Gray

I, 76 M.J. 579; Sutton, 78 M.J. 537. In any event, the

result is the same: stripped of a remedy within the

military justice system, servicemembers will be forced

to seek relief through the federal judiciary. This is

significantly problematic for several reasons.

First, there is no authority or precedent

promoting civilian courts as the primary arbiters over

military-related claims. This is for good reason. As

this Court has acknowledged, “the military

constitutes a specialized community governed by a

separate discipline from that of the civilian.” Parker

v. Levy, 417 U.S. 733, 744 (1974). Because “the rights

of men in the armed forces must perforce be

conditioned to meet certain overriding demands of

discipline and duty . . . the civil courts are not the

agencies which must determine the precise balance to

be struck in this adjustment.” Burns v. Wilson, 346

U.S. 137, 140 (1953). Rather, Congress has this task.

Id. To this end, Congress established what it intended

to be a self-sufficient, self-correcting uniform military

justice system. The bedrock of this system, the UCMJ,

with its seemingly imprecise standards based on

centuries of customs and general usages, simply

“cannot be equated to a civilian code.” Parker, 417

U.S. at 749. Accordingly, “Congress codified primary

responsibility for the supervision of military justice”

in the CAAF. Noyd, 395 U.S. at 695.

The civilian courts have correspondingly given a

“substantial degree of deference” to military tribunals.

Loving I, 62 M.J. at 250 (citing Noyd, 395 U.S. at 696).

This deference is grounded in the doctrine of

exhaustion, which generally requires litigants seeking

post-conviction relief to first seek such relief from the

judicial system actually responsible for the conviction.

Included within the military-specific exhaustion

requirement are concerns regarding judicial economy,

the separation of powers, the need to maintain good

order and discipline in the armed forces, avoiding

needless friction between the civilian and military

judicial systems, and respect for the military courts’

“expertise in interpreting the technical provisions of

the UCMJ.” Id. (citing Noyd, 395 U.S. at 696); accord

Parisi v. Davidson, 405 U.S. 34 (1972); Lawrence v.

McCarthy, 344 F.3d 467, 471 (5th Cir. 2003) (“Because

the military constitutes a specialized community

governed by a separate discipline from that of the

civilian, orderly government requires that the

judiciary scrupulously avoid interfering with

legitimate Army matters.”).

The authority of Article III courts over the military

has thus been limited through a combination of

Congressional design and judicial temperance. This

pragmatic and long-standing arrangement is at risk,

however, if the military courts continue to abdicate

their appellate responsibilities like the CAAF in this

case and the CCAs in a growing number of others.

See, e.g., Chapman, 75 M.J. 598 (prohibiting habeas

corpus relief after Article 76 finality); Sutton, 78 M.J.

537 (prohibiting mandamus relief after Article 76

finality). Indeed, if servicemembers are forced to turn

to civilian courts for post-finality relief, fewer cases

will appear before courts with discernible and

specialized competencies in military affairs, and the

federal judiciary will ultimately supplant the CAAF

as the overseer of military justice. Congress and the

civilian courts clearly do not desire such a fate, and

neither should this Court.

The danger here is not just that the civilian courts

will become the first and primary resort for

addressing military claims. Rather, it is that these

courts will consider post-finality allegations relating

to the validity of convictions and sentences, as

illustrated by this case and Denedo. The civilian

courts will thus be determining the legitimacy of

courts-martial, thereby wresting from the military

courts the authority “to protect the integrity of [the

military courts’] earlier judgments.” Denedo, 556 U.S

at 916. Given the specialized structure of the military,

and the unique nature and disciplinary purpose of

military justice, supervisory responsibility over

courts-martial and the UCMJ should and must

remain with the CAAF and CCAs.

Finally, if servicemembers are forced to seek postfinality redress outside the military courts, it will be

extraordinarily difficult to ensure uniform results.

For example, the present case would likely be heard

in the 10th Circuit due to Petioner’s incarceration at

the United States Disciplinary Barracks at Fort

Leavenworth, Kansas. However, military prisoners

situated at other locations may appear before

different circuits. Indeed, virtually every federal

circuit and district would be involved. See, e.g., Roukis

v. United States Army, 2014 U.S. Dist. LEXIS 160690

(S.D.N.Y. Nov. 14, 2014 ); Lewis v. Oddo, 2015 U.S.

Dist. LEXIS 174302 (N. Dist. W.Va. Dec. 22, 2015);

Hollis v. Cruz, 2012 U.S. Dist. LEXIS 135345 (N.D.

Tex. Jul. 24, 2012); Jenks v. Warden, 2018 U.S. Dist.

LEXIS 77123 (S.D. Ohio May 7, 2018); Hurn v. Kallis,

2018 US Dist. LEXIS 108024 (C.D. Ill. Jun. 28, 2018);

Brooks v. United States, 2016 US Dist. LEXIS 183902

(N.D. Fla. Dec. 8, 2016).

The application of laws within these federal

circuits is varied, particularly with regards to postconviction petitions for extraordinary relief. See, e.g.,

Brosius v. Warden, 278 F.3d 239, 244 (3d Cir. 2002)

(discussing the difficulties and varied interpretations

of the circuits in applying the “full and fair”

consideration test on habeas claims) (citing Burns,

346 U.S. at 144); see also Kauffman v. Sec. of the Air

Force, 415 F.2d 991, 997 (D.C. Cir. 1969) (noting that

the full and fair test “has meant many things to many

courts.”). Accordingly, an Airman incarcerated in

Kansas may have his post-finality writ treated one

way, while a Sailor housed in California has her

similar writ treated another.

Such disparate

treatment cuts against the clear intent of Congress,

which established the CAAF to ensure uniformity of

military court decisions. See, e.g., 95 Congr. Rec.

H5719-22 (daily ed. May 5, 1949).

CONCLUSION

Petitioner’s request for extraordinary relief was

functionally equivalent to the presented issue in

Denedo, as it challenged the underlying sentence from

his court-martial and thus represented a further step

in his criminal appeal. Consequently, the Secretary of

the Air Force’s finalization of the case under Article

76 should not have affected the military courts’

jurisdiction to entertain Petitioner’s writ-petition nor

his subsequent writ-appeal. This is particularly true

given that, unlike the petitioner in Denedo, Petitioner

initially sought relief prior to Article 76 finality.

The CAAF’s decision to the contrary conflicted with

this Court’s controlling precedent and the UCMJ, and

represents an abdication of its authority and

responsibilities under Article 67(a)(3).

Without

intervention by this Court, the CAAF’s erroneous

jurisdictional determination will reign over the

military judicial system, encouraging and sanctioning

the lower courts from entertaining post-finality

extraordinary writs. This will in turn burden the

federal judiciary, whose civilian judges will soon

become the final arbiters over the morass of militaryspecific issues raised by servicemembers stripped of

their right to seek redress from the acutely specialized

and suited military courts. Civilian judges will

further determine the legitimacy of courts-martial,

thereby precluding the military courts from protecting

the integrity of their own judgments and ensuring

uniformity in the Armed Forces. Neither Congress

nor the federal courts desire such fates, and neither

should this Court.

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully Submitted,

Mark C. Bruegger

Counsel of Record

Air Force Legal Operations Agency

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4782

mark.c.bruegger.civ@mail.mil

Counsel for Petitioner

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